July 22, 2011
MIGUEL A. MEJIA, PLAINTIFF-APPELLANT,
JUANA MEJIA, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-987-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 16, 2011
Before Judges Reisner and Alvarez.
Plaintiff Miguel A. Mejia appeals from a December 11, 2009 Family Part order, subsequently amplified on February 1, 2010. See R. 2:5-1(b). The court denied plaintiff's application to emancipate the parties' son Jonathan and reduce child support payments payable to defendant Juana Mejia retroactive to July 2, 2008. For the reasons that follow, we affirm.
Because of the somewhat unusual procedural history in this case, we reiterate it in some detail along with the parties' circumstances as pertinent to this appeal. Plaintiff and defendant have three children, the oldest of whom is emancipated. Remaining on the support order are the parties' nineteen-year-old and seven-year-old. The older child was in a drug rehabilitation center at the time of plaintiff's application. The younger child resides with her mother. Plaintiff has three children with his current wife: an adopted nine-year-old child, and two children of the marriage, ages three and one.
At the time of the parties' divorce in April 2006, plaintiff agreed to pay $850 per month in child support. Later during that year, however, he became ill from several serious medical conditions. In January 2007, defendant agreed to accept reduced child support of $500 per month. In February 2008, plaintiff was terminated from his employment for insubordination and ceased making any payment towards child support.
Plaintiff made a series of applications to reduce his support obligations and defendant made a series of countervailing motions to secure his compliance with court orders. The order from which plaintiff appeals resulted from an October 6, 2009 application to emancipate his older child and modify support based upon the birth of his youngest child with his new wife. Additionally, he sought to have Social Security payments received by the children, derivative of the benefits he obtained as a result of his disabilities, reduce the amount of his obligation.
In support of that motion, plaintiff asserted that he received $1454 in monthly benefits, while each of his children received derivative benefits of $242. Defendant acknowledged the nineteen-year-old child was in an in-patient rehabilitation program, but countered that he had no employment, and would resume living with her and attending school upon completion of the program.
On December 11, 2009, the court denied plaintiff's application without prejudice, but granted a ninety-day suspension of the arrearage portion of the order, or $151.67 per month. Plaintiff subsequently filed an initial application for reconsideration on December 30, 2009. That motion was returned to counsel for a "deficiency in the 'notice to litigant.'"
On January 25, 2010, plaintiff submitted a second motion for reconsideration as well as a notice of appeal. On February 1, 2010, the court issued an amplified statement of reasons for the December 11 order. The judge explained he did not emancipate the nineteen-year-old because of the uncertainty of his status and the possibility he would again become financially dependent on his mother if he returned to high school. The court also noted plaintiff had not documented the income available to his second family. In similar fashion, plaintiff had not provided documentation regarding either the amount of his children's derivative benefits or the dates they were received. Therefore, despite the undisputed birth of plaintiff's youngest child, the judge did not modify the child support order.
On March 15, 2010, after the filing of the notice of appeal, plaintiff's last motion for reconsideration was denied without prejudice because the Family Part lacked jurisdiction. On April 30, after plaintiff filed his brief and appendix with this court, we granted a temporary remand to allow that motion to be heard by the judge who issued the disputed orders.
No transcript of the proceeding has been provided, but we know from an order included in the appendix that on July 16 the Family Part judge reduced plaintiff's support obligation to $43 per week, retroactive to October 16, 2009, the start date for the proceedings resulting in the order now on appeal. The judge also required defendant to keep plaintiff informed of the nineteen-year-old's status. The court explained it was able to act on plaintiff's application because he had finally documented his receipt of $1454 monthly in Social Security disability benefits and $500 monthly in food stamps. He also documented that his current wife received $162 weekly in temporary disability, and that his two oldest children from that marriage received $181.80 per month each in derivative benefits, while his daughter with defendant received $242.80 per month from December 2008 to November 2009, and $181.80 per month thereafter. Plaintiff also submitted a Case Information Statement (CIS) pursuant to Rule 5:5-2.
Plaintiff subsequently communicated to the judge that child support had been incorrectly calculated. Accordingly, on December 10, 2010, plaintiff filed a supplemental brief with this court challenging only the clerical errors included in the erroneous calculations, the decision to continue the oldest child's unemancipated status, and the effective date of the child support modification order.
On January 19, 2011, the trial court issued another amended order which reduced plaintiff's child support to $36 per week. The judge declined to make the modification retroactive to July 2008 or to emancipate the nineteen-year-old. We therefore only address plaintiff's claims regarding retroactivity and emancipation.
We accord great deference to a trial court's findings of fact. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009). Only the trial court "has the opportunity to make firsthand credibility judgments" and possesses a "'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). This deferential review is heightened in Family Part cases. The Family Part has an acknowledged "special . . . expertise in family matters[.]" Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
First, as to the emancipation of the parties' son, it is undisputed that age and educational status alone are not necessarily dispositive on the question of emancipation. See Newburgh v. Arrigo, 88 N.J. 529, 543-44 (1982). Furthermore, the burden is not, as plaintiff contends, upon defendant to prove that the nineteen-year-old is not emancipated. The burden rests solely on plaintiff to establish the facts necessary to prove emancipation.
No new information regarding the nineteen-year-old's status was included in the record beyond the December 2009 order and, at that juncture, his future hung in the balance. The possibility remained that he would return from treatment to his mother's home and resume his schooling. In any event, she was responsible to maintain a home for him, and therefore pay for his basic shelter expenses, pending his graduation from the drug program. Accordingly, we agree that plaintiff's proofs did not establish a basis for emancipating his son, and that the judge did not err in denying the request. This, obviously, is without prejudice to plaintiff's right to make future applications based on more certain circumstances.
Next, we see no error in the court's refusal to modify plaintiff's child support obligation retroactive to July 2008. The court's order was retroactive only to October 16, 2009. By statute, "[n]o payment or installment of an order for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed[.]" N.J.S.A. 2A:17-56.23(a). In this case, the court made the retroactive date the filing date of plaintiff's first complete application as, to that point, his submissions were procedurally lacking. The delay was occasioned by plaintiff's lack of diligence in submitting necessary documents with his motions. See Sheren v. Moseley, 322 N.J. Super. 338, 341 (App. Div. 1999). The trial court's decision as to retroactive modification constitutes a reasoned application of the statute. Accordingly, plaintiff is not entitled to an earlier retroactive date.
Plaintiff also asserts as additional grounds for an earlier retroactive date his daughter's receipt of derivative benefits as of December 2008. The trial court's January 18, 2011 order does include those benefits. The parties' child received $242.80 per month from December 2008 to November 2009, and only $181.80 per month thereafter. The statement of reasons attached to the order reflects the child's receipt of $181.80 per month in benefits, although Line 12 of the amended child support guidelines worksheet, entitled "Government Benefits for the Child," reads "-$84.00."*fn1 See also Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2467 (2011) (stating the amount of such benefits "must be deducted from the total support award"). "If the government benefit received by the child is greater than the entire support award . . . the amount of the government benefit . . . represents the support award." Ibid. Receipt of the derivative benefits does not overcome the legal limitations found in the anti-retroactivity statute, N.J.S.A. 2A:17-56.23(a), and plaintiff's incomplete filings.